U.S., EPO and Chinese Software-Related Patent Grants Remained Steady in 2023

As an replace to my earlier posts from 2017, 2019, 2020, March 2021, August 2021, 2022 and 2023, it has now been nearly a decade because the U.S. Supreme Courtroom’s 2014 Alice Corp. v. CLS Bank determination. But the talk nonetheless rages over when a software program (or computer-implemented) declare is patentable versus being merely an summary concept “free to all males and reserved completely to none” (as eloquently phrased 76 years in the past by then-Supreme Courtroom Justice Douglas in Funk Bros. Seed Co. v. Kalo Inoculant Co.).

Additional, it has been 13 years since famed enterprise capitalist Marc Andreessen wrote the influential and often-quoted op-ed piece within the Wall Avenue Journal titled “Why Software Is Eating the World.” As we speak, the digital transformation the place software program is “consuming the world” is plain. Any primary analysis on the highest expertise developments for 2024 will produce outcomes centered round Synthetic Intelligence (AI), quantum computing, cybersecurity and Info Know-how (IT) [Technology Magazine] [Washington Post] [Gartner] – principally, software program! No surprise that in accordance with U.S. News and World Report, 4 of the highest 10 greatest jobs based mostly on wage potential and demand in 2024 had been software program builders, IT managers, data safety analysts, and knowledge scientists.

Another related observations:

• Software program developer is the primary greatest expertise job of 2024, the place the median wage is US$127,260, and the U.S. Bureau of Labor Statistics expects 25.7% development within the occupation over the subsequent 10 years [S. News & World Report].
• Within the 2021-22 U.S. tutorial 12 months, 34,758 Affiliate’s levels, 108,503 Bachelor’s levels, 51,388 Grasp’s levels and a couple of,790 PhDs had been awarded in pc and data sciences [National Center of Educational Statistics].
• In 2023, international M&A exercise within the Software program and Web Providers house reached US$370 billion, representing over 5,603 offers [IMAA].
• Gartner estimates that complete international IT spending will attain US$4.9 trillion in 2024, an general improve of 6.8% from 2023, with the software program and IT providers segments projected to develop 12.7% and eight.7% in 2024, respectively, however the gadgets section is forecasted to extend solely 4.6% [Gartner].

So, given the above, we once more sought to find out what proportion of issued patents by the U.S. Patent and Trademark Workplace (USPTO), the European Patent Workplace (EPO) and the China Nationwide IP Administration (CNIPA) are “software-related”?

To outline what patents are “software-related,” we utilized the identical methodology employed by america Authorities Accountability Workplace in a 2013 report to Congress. That report relied on sure United States Patent Classification (USPC) lessons and subclasses of functions most certainly to incorporate software-related claims as chosen by skilled advisors to the USPTO. Now, with the help of IP providers agency Clairvolex (and after changing from the USPC system to the Cooperative Patent Classification (CPC) system), knowledge was pulled from the PatSeer Global Patent Database.

New this 12 months, we additionally tried to seize the proportion of software-related patents granted by the USPTO, EPO and CNIPA targeted on AI and related ideas corresponding to Machine Studying, Neural Networks, Fuzzy Logic, Supervised Studying, Unsupervised Studying, and the like, within the Title, Summary, Claims, and the Abstract of Invention fields of the patents. The outcomes?

In 2023:

• 62.7% of issued U.S. utility patents had been “software-related” (a slight lower from the 63.5% in 2022)
  • 7.8% of issued U.S. utility “software-related” patents had been “AI-related”
• 50.1% of granted EPO patents had been “software-related” (a slight improve from the 49.6% in 2022)
  • 2.9% of granted EPO “software-related” patents had been “AI-related”
• 42.4% of granted Chinese language patents had been “software-related” (down from 43.5% in 2022)
  • 7.4% of granted Chinese language “software-related” patents had been “AI-related”
• The highest 15 software-related granted U.S. utility patent assignees had been:

Regardless of the importance of the above numbers, the whole thing of the patent bar can agree that the Alice determination, together with the U.S. Courtroom of Appeals for the Federal Circuit’s 2008 en banc determination in In re Bilski (concluding that the “machine or transformation” take a look at is the governing take a look at for figuring out patent eligibility of a course of underneath Section 101 of the Patent Act) and a slew of circumstances since then, have left issues unclear. Is the next steerage from Chapter 2100 of the Guide of Patent Analyzing Process (MPEP) (9^th ed., Feb. 2023) one of the best we will do?

Legislative assist remains to be not on the best way. In August of 2022, U.S. Senator Thom Tillis (R-NC) launched draft laws titled the Patent Eligibility Restoration Act of 2022 to deal with the Part 101 downside. The invoice went nowhere throughout the 117^th Congress. Extra not too long ago, Senator Tillis reintroduced the same bill, now co-sponsored by Senator Chris Coons (D-DE) in June of 2023, and retitled the Patent Eligibility Restoration Act of 2023 [S.2140]. Within the accompanying press release, they summarily and appropriately acknowledged:

“Sadly, our present Supreme Courtroom’s patent eligibility jurisprudence is undermining American innovation and permitting international adversaries like China to overhaul us in key expertise improvements. … Sadly, resulting from a sequence of Supreme Courtroom choices, patent eligibility legislation in america has change into confused, constricted and unclear lately. … As of 2021, all 12 judges of america Courtroom of Appeals for the Federal Circuit have lamented the state of the legislation. … [R]eforms are vital to revive america to a place of world power and management in key areas of expertise and innovation, corresponding to medical diagnostics, biotechnology, customized drugs, synthetic intelligence, 5G and blockchain.”

Given that is an election 12 months and partisan squabbles abound, the 118^th Congress is unlikely to behave. Possibly the 119^th Congress will act come January 2025? We’ll preserve our patent-drafting fingers crossed!